Mohammed Nias C.P., J.:— These original petitions (KAT) are filed against the order in OA (EKM) 555 of 2021 dated 15.12.2021. OP(KAT) 103 of 2022 is filed by the State of Kerala and its officials, while OP(KAT)123 of 2022 is filed by those persons who unsuccessfully filed a review against the impugned judgment before the Tribunal.

2. The applicant in OA No. 555 of 2021, a Mechanic in the Agricultural Development and Farmers Welfare Department, a post which is included as a feeder category for promotion as Assistant Engineer (Agriculture), approached the Tribunal against the non-filling up of three vacancies of Assistant Engineer (Agriculture) available for promotion. Earlier, the qualification and method of appointment to the post of Assistant Engineer (Agriculture) was laid down as per executive orders dated 7.3.1990, Annexure A1, which was later amended as per Annexure A2 order dated 05.05.1993. Alleging that the applicant was included in Annexure A3 select list of the employees eligible for promotion in the year 2012 and stating that vacancies have arisen on 31.05.2017, 30.04.2019 and 05.11.2020, the appellant sought convening of the Department Promotion Committee (DPC) for effecting promotion. While so, the Special Rules, namely the Agricultural State Services Special Rules, 2021 was brought into force as per notification dated 12.02.2021 and the applicant contended that the said Rules are only prospective and cannot be invoked to fill up those vacancies in existence prior to its coming into force.

3. The Government filed a statement stating that four vacancies of Assistant Engineer (Agriculture) was available in the Department, out of which one was reported to the Public Service Commission for direct recruitment in tune with the ratio of 3 : 1 and that three vacancies are remained to be filled up through promotion.

4. The additional third respondent who subsequently got impleaded in the original application contended that those vacancies are to be filled up through promotion on the basis of the seniority and eligibility and questioned the provisional seniority list that was in existence at that point of time.

5. The Tribunal after hearing both sides held that since it is not disputed that the vacancies had arisen prior to the coming into force of Special Rules, they are to be filled in accordance with Annexure A1 and Annexure A2 executive orders which held the field at the time when the vacancies arose. Accordingly, the Government was directed to ensure that the DPC is convened to carry out the promotions in tune with the select list to be filled up. A review was carried against the said order of the Tribunal by the petitioner in OP(KAT) 123 of 2022, but was rejected.

6. The petitioners in OP(KAT) 123 of 2022 filed a review before the Tribunal pointing out the judgment of the Supreme Court in State of Himachal Pradesh v. Raj Kumar [JT (2022) 5 SC 516] and contending that promotions are to be made by resorting to the Special Rules and not by Annexure A1 and Annexure A2 executive orders. The Tribunal dismissed the review following the judgment in K.R Mohanan & Anr. v. Director Of Homeopathy & Ors. [(2006) 3 KLT 641] and also finding that there was no intention by the authority to fill up the already existing vacancies by resorting to the Special Rules.

7. Since both these original petitions arise from the same order, they are taken up together and disposed by a common judgment.

8. We have heard Sri. Bijoy Chandran, the learned Government Pleader, Sri. Mohanlal for the petitioners in OP(KAT) 123 of 2022, Sri. P. Ramakrishnan for the 3 respondent and Sri. Mohammed Haneef for the 4 respondent.

9. It is not disputed that three vacancies are available for promotion and they arose on 31.5.2017, 30.04.2019 and 11.5.2020. It is also not disputed that the Special Rules have come into force on 12.2.2021. The essential dispute in the present case is the manner in which these vacancies are to be filled up for promotion, namely, whether under the executive orders, Annexure A1 and Annexure A2 or by the Special Rules, Annexure A7.

10. The learned Government Pleader as well as the learned counsel for the petitioners in OP(KAT) 123 of 2022 submits that this dispute is no longer res integra after the judgment of the Supreme Court in State of Himachal Pradesh (supra). After surveying all the decisions that were considered by the Supreme Court in Y.V. Rangaiah v. Sreenivasa Rao [(1983) 3 SCC 284, which held that the vacancies that arose when the old Rules were in force will be governed by the old Rules, the court found the said view to be untenable and proceeded to overrule Y.V. Rangaiah (supra). It was found that there is no right for the employee outside the Rules governing the service. When the subsequent Rules come and there is no provision in the said Rules to enable any employee to be considered as per old Rules, the matter must end there and reiterated that the rights and obligations of the persons serving the Union and the States are to be sourced from the Rules governing their services.

11. The learned counsel for the 4 respondent in OP(KAT)123 of 2022 however argued on the basis of Rules 28(bb) of Part II KS&SSR, which is extracted hereunder:—

“28(bb) Promotion which depends upon the passing of any examination.- Promotion in a service or class which depends upon the passing of any examination (General or Departmental) shall ordinarily be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up.”

12. It is argued on the basis of the said Rules, that as per the relevant Rules the conditions at the time of occurrence of vacancies is to be considered and not at the time when the question of promotion is taken up and therefore, that has to be followed and not the dictum laid down in State of Himachal Pradesh (supra). We are not impressed with the said argument. Rule 28(bb) can only be construed as a general rule whereas in the case on hand there is a special rule which deal with the manner of promotion. In view of the authoritative pronouncement of the Supreme Court in State of Himachal Pradesh (supra) we are not inclined to accept the contention that Rule 28(bb) must be construed to be a departure or that the dictum laid down in the said judgment is distinguishable.

13. It is also significant that the State had not committed itself to filling up the existing vacancies based on the old Rules. It is trite that the mere existence of vacancies does not confer any right on qualified employees to seek appointment to the said vacancies. It is open to the State to decide, as a matter of policy, that the vacancies should be filled only in accordance with the new Rules. This is more so when we are told that the new Rules were in a draft stage for a considerable period of time before they finally came into force.

14. We also hold that the decision in Mohanan (supra) cannot be taken as good law in view of the judgment of the supreme Court in State of Himachal Pradesh (supra) as the Full Bench of this Court had relied on the judgment in Y.V. Rangaiah (supra) to come to the conclusion that the promotion has to be on the basis of the old rules when the vacancy fell prior to the coming into force of the amended Rules. This cannot be accepted as the said judgment relied on by this Court has been expressly overruled in State of Himachal Pradesh (supra).

15. In the light of the discussion above, we have no hesitation to hold that the Tribunal was in error in directing the promotion on the basis of Annexure A1 and Annexure A2 orders which stood replaced by the Special Rules. Promotion had to be effected only under the Special Rules. Accordingly, OP(KAT) 103 of 2022 at the instance of the State of Kerala as well as OP(KAT) 123 of 2022 are to be allowed and OA (EKM) No. 555 of 2021 will stand dismissed.